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Cardenas v. Acting Warden

United States District Court, D. Nevada

December 11, 2017

JOEL CARDENAS, Petitioner,
ACTING WARDEN, et al., Respondents.



         This represented habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' unopposed motion to dismiss (ECF No. 11). Respondents contend that twenty-three grounds or subparts of grounds are unexhausted and that Ground 3(g) is procedurally defaulted.

         I. BACKGROUND

         Petitioner Joel Cardenas challenges his Nevada state conviction, pursuant to a jury verdict, of sexual assault. He is sentenced on this conviction to life with the possibility of parole after a minimum of ten years has been served, along with a special sentence of lifetime supervision and a requirement that he register as a sexual offender. Petitioner challenged his conviction on direct appeal and in a timely state post-conviction petition. He was represented by counsel on direct appeal, and counsel also was appointed during state post-conviction review both for the state district court proceedings and on the post-conviction appeal.


         A. Failure to Oppose Motion

         Under Local Rule LR 7-2(d), “[t]he failure of an opposing party to file points and authorities in response to any motion [with exceptions not applicable here] shall constitute a consent to the granting of the motion." When an opposing party receives notice and is given sufficient time to respond to a motion to dismiss, a district court does not abuse its discretion in granting the motion based on failure to comply with a local rule. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.1995). Before dismissing a case for failing to follow local rules, the district court must weigh the following factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986).

         In the present case, petitioner was given appropriate notice of respondents' motion to dismiss; and he has had ample time to respond to the motion to dismiss, which has been pending for over a year. The Court has weighed the above factors. It finds that the public's interest in expeditious resolution of litigation, particularly litigation involving the validity of state criminal judgments, as well as the Court's need to manage its docket, outweigh the risk of prejudice and the remaining factors. The motion to dismiss therefore will be granted in the first instance due to petitioner's failure to respond to the motion under the local rule, with the exception discussed infra based upon the Court's independent review of the motion.

         B. Exhaustion

         Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust state court remedies on a claim before presenting that claim to the federal courts. To satisfy this exhaustion requirement, the claim must have been fairly presented to the state courts completely through to the highest state court level of review available. E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the specific federal constitutional guarantee upon which he relies and must also state the facts that entitle him to relief on that federal claim. E.g., Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000). That is, fair presentation requires that the petitioner present the state courts with both the operative facts and the federal legal theory upon which the claim is based. E.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement insures that the state courts, as a matter of federal-state comity, will have the first opportunity to pass upon and correct alleged violations of federal constitutional guarantees. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731 (1991).

         Under Rose v. Lundy, 455 U.S. 509 (1982), and following cases, a mixed petition presenting unexhausted claims must be dismissed unless the petitioner dismisses the unexhausted claims and/or seeks other appropriate relief, such as a stay to return to the state courts to exhaust the claims.

         Following an independent review of petitioner's state court briefing and the orders of affirmance on the direct appeal and state post-conviction appeal, [1] the Court is persuaded that federal Grounds 1, 2(a) through 2(e), 2(g) through 2(1), 3(a), 3(b), 3(d), 3(e), 3(f), 3(h) through 3(k), 4 and 5 were neither fairly presented to nor actually considered on the merits by the Supreme Court of Nevada. These claims therefore are unexhausted.

         The Court is not persuaded, however, that Ground 3(c), which pertains to polygraph examinations of petitioner and the victim, is unexhausted.

         On the post-conviction appeal, petitioner contended that he was denied effective assistance of counsel when trial counsel stipulated to the admission of polygraph test results and interviews of petitioner and the victim. He alleged, inter alia, that: (1) “Trial Counsel allowed his client to undergo a polygraph examination thereby waiving his Miranda Rights and then stipulated that the entire interview and the results be admitted into evidence;” (2) “[t]here was absolutely no reason for Trial Counsel to allow his client to undergo a polygraph examination in this case and to stipulate that both interviews and test results be admitted into evidence;” (3) “[t]he jury should have never heard that Appellant had failed a polygraph examination and or what the Appellant said during the interview that accompanied the polygraph examination;” and (5) “there was a reasonable ...

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